Ukku Banda V. Karupai Et Al.,

1923.  Present: De Sampayo A.C.J, and Garvin A. J.

UKKU BANDA v. KARUPAI et al.

404-D. C. Kurunegala, 8,301.

Estoppel by conduct-Puisne incumbrancer not bound by decree against mortgagor present at execution sale-Is he estopped from asserting his title ?

To establish an estoppel by conduct by silence, the person who is sought to be estopped by reason of his silence must be proved to have intended to create a false impression on the person who sets up the estoppel, and that he caused him thereby to do a particular act.

Where a puisne incumbrancer who was not bound by a mortgage decree (he not having been made a party to the action or noticed) was present at the execution sale and was silent; held in the circumstances of the case he was not estopped from asserting his title.

THE facts are set out in the judgment.

H.V. Perera (with him Weerasinghe), for first defendant, appellant. Soertz  for plaintiff, respondent.

July 2, 1923. DE SAMPAYO A.C.J.-

This appeal raises a question of estoppel by conduct. The second defendant was the owner of one-third share of Galwalagawahena. By bond dated August 2, 1911, Tie mortgaged this share and two other lands to the plaintiff. On August 22, 1917, the plaintiff sued the second defendant on this bond and on another mortgage bond of November 7, 1911, and on a promissory note. It would seem that the plaintiff obtained judgment for the aggregate sum due on all three causes of action and a decree declaring the mortgaged lands bound and executable for that sum. I cannot see how the mortgaged property could have been specially bound in respect of the amount due on the .promissory note. But this curious procedure may for the purposes of this appeal be overlooked. After this decree was entered, one Martin Perera, an auctioneer, was appointed to carry out the sale of the mortgaged property, and accordingly two of the lands, including the one-third share' of Galwalagawahena now in question, were sold on August 3, 1918, and were purchased by the decree holder, the present plaintiff, to whom the auctioneer conveyed the lands by deed dated March 14,-1919

The first defendant claims the one-third share of Galwalagawahena on a deed of sale dated March 13, 1917, executed by the second defendant in her favour and registered on March 17, 1917. The plaintiff as mortgagee had not registered an address and had not followed any of the provisions in sections 343 and 344 of the Civil Procedure Code, nor had he made the first defendant a party to the mortgage action, or given her any kind of notice. So far as these facts are concerned, the first defendant was not bound by the mortgage decree, and the present case being a contest for title between the plaintiff and the first defendant, the title of the first defendant must prevail. We have, however, to consider certain other facts which are said to affect her title. The consideration for the transfer by the second defendant to the first defendant was the sum of Rs. 1,500, of which Rs. 35 was paid in the presence of the notary, Rs. 400 was set off against a debt due by the second defendant on a promissory note, "and the balance, Rs. 1,065, 'was retained by the first defendant to pay to the plaintiff the interest due on the mortgage. The District Judge calls this " a bogus deed," which conveys no meaning to me, except, perhaps, that the District Judge does not like it. The interest was not paid by the first defendant, and the second defendant, who is her son-in-law, was allowed to live on the land with his family. Even if the deed is " bogus," the title thereby passed to the first defendant, and the plaintiff was not excused from the necessity of binding her with a decree. The District Judge also thinks that the deed was executed "to defraud creditors," meaning by "creditors," no doubt, the mortgagee. This is an extraordinary idea, because the sale was on the face of the deed expre

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